THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: 2025-232887
In the matter between:-
KEITUMETSE LUCRATIA RAMABOEA AND
5 OTHERS Applicants
and
RONALD OPPELT First Respondent
FARO YCL Second Respondent
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY Third Respondent
This judgment was handed down electronically by circulation to the parties and
legal representatives by email. The date and time for hand- down is deemed to
be 27 January 2026.
Summary: Urgent interdict application – principles considered – applicant
failing to make out a case for urgency – undue delay in proceedings – urgency
self created – applicants can obtain substantial redress in ordinary course –
matter not urgent – matter however matter falls to be dismissed
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
____________ ______________
Signature Date
2
Jurisdiction – s 157(1) and (2) – applicant failing to establish jurisdiction of the
Court to grant the relief sought – matter falls to be dismissed for want of
jurisdiction
Interdict – clear right – applicant having no right to interdict employer from
disciplining employees – no clear right shown
Costs – principles considered – application abuse of process – application
dismissed with costs
JUDGMENT
SNYMAN, AJ
Introduction
[1] This judgment brings up a distinct feeling of déjà vu. It is another one of those
applications where employee parties in the public service sector seek to
scupper disciplinary proceedings on the basis of seeking an urgent interdict
against such proceedings. The application is brought despite all that had been
said in this Court about the lack of competence of such conduct. 1 As made
pertinently clear in Minya v SA Post Office Ltd and Others2:
‘From a plethora of such cases that are routinely brought on an urgent basis, it
has become increasingly apparent that this court is more often than not called
upon to micro-manage these internal proceedings, and that every little
complaint about internal disciplinary proceedings, whether real or perceived,
has by default, become an ‘exceptional circumstance’. It has long been stated
that the powers of this court under the Labour Relations Act (LRA) do not
include the micro-management of workplace discipline or every dispute arising
out of the workplace. This is so in that the prerogative to maintain discipline
1 See Public Allied Workers Union of SA on Behalf of Netshikhudini v Commission for Conciliation,
Mediation and Arbitration and Others (2022) 43 ILJ 2812 (LC) at paras 1 – 2; National Union of
Metalworkers of SA on behalf of Members v BMW (SA) (Pty) Ltd (2025) 46 ILJ 2712 (LC) 1; Choko-
Choko and Others v Tharisa Minerals (Pty) Ltd (2025) 46 ILJ 2618 (LC) at paras 38 – 39.
2 (2021) 42 ILJ 141 (LC) at para 2.
3
remains that of the employer, and further since the framework of the LRA is
such that it is dispute specific.’
[2] The basis of the applicants ’ case, as discussed later in this judgment, is
nothing else but asserting that the disciplinary proceedings instituted against
them as far back as April 2025, and in which they have fully participated
without protest until now, is unlawful, and must thus be interdicted. This is
exactly what the aforesaid authorities are critical about.
[3] This matter came before me as an urgent application on 22 January 2026. It
was opposed by the respondents. After hearing argument by both parties, and
considering the affidavits and h eads of argument filed, I granted the following
order:
1. The applicant’s application is dismissed.
2. The applicants are ordered to pay the respondents ’ costs on the party
and party scale A, the one paying the other to be absolved.
3. Written reasons for this order will be provided on 27 January 2026.
This judgment now constitutes the written reasons in terms of paragraph 3 of
the above order.
Background facts
[4] The background facts in this case are straight forward, and mostly undisputed.
The applicants are employed by the third respondent as metropolitan police
officers. They are in the process of being disciplined for a variety of allegations
of misconduct, as a result of an incident that occurred on 24 August 2024, the
particulars of which need not concern this judgment.
[5] The disciplinary proceedings against the applicants commenced in February
2025. The applicants fully participated in the same without objection. The
actual disciplinary hearing first commenced on 8 and 9 April 2025, and
continued on several days in the course of 2025 thereafter, with the next set of
4
hearing dates being scheduled for 11 to 13 November 2025. The applicants
were legally represented in and throughout the proceedings.
[6] On 7 November 2025, the applicants’ counsel advised the chairperson and the
parties that he intended raising a preliminary point at the hearing on 11
November 2025. This point arose from the applicants’ counsel’s interpretation
of the third respondent’s Corporate System of Delegations (CSD) of 2020,
promulgated as contemplated by part 3 of Chapter 7 of the Local
Government: Municipal Systems Act (Systems Act)
3. In terms of section 59(1)
of the Systems Act , a municipal council must develop a system of delegation
that will maximise administrative and operational efficiency and provide for
adequate checks and balances.
[7] The substance of the point raised was that the disciplinary proceedings were
instituted by the first respondent, who is the Divisional Head: Labour Relations
Management at the third respondent , when he had no authority to do so. On
the undisputed fact s, it was the first respondent that acted as the
representative of the Municipal Manager of the third respondent in instituting
the proceedings, by virtue of a delegation of authority to the first respondent
under the OSD, dealt with in more detail below. According to the applicants ,
the delegation relied on by the first respondent did not empower him to
institute disciplinary proceedings. It was argued that a reading of the OSD, and
the particular the delegation document relied on by the first respondent, did
not contemplate or provide for such authority . In summary, it was the
contention of the applicants that the first respondent was not lawfully the
Municipal Manager's representative, and as a result, the disciplinary
proceedings were unlawful.
[8] A consideration of the OSD shows that the ‘power to institute’ disciplinary
hearings against any official rests with the City Manager. This power however
hearings against any official rests with the City Manager. This power however
can be subdelegated. Part D of the OSD specifically deals with delegation of
powers relating to Human Capital Management. In general, it delegates all
managerial powers in this respect from the Executive Mayor to the City
Manager. It then specifically allows for further sub delegation, in line with best
practice, to responsible Departments . In terms of Power 2E26, the power to
3 Act 32 of 2000.
5
discipline any official of the third respondent is part of these powers
susceptible to sub delegation. On 23 March 2022, the Acting City Manager, in
writing, subdelegated the power to institute or defend any court or similar
process to the first respondent as Divisional Head: Labour Relations
Management, and to sign any process relating to the same.
[9] According to the applicants, this did not constitute a valid and lawful sub
delegation to institute disciplinary proceedings against them. They argue that a
notice to disciplinary hearing cannot be regarded as an affidavit or document
emanating from a legal matter. They further contend that if the sub delegation
was intended to included discipline, as categorically referred to in power 2E26,
the sub delegation would have said so. The applicants finally contend that the
power and those related to it, seem to reside with the Legal Department rather
than with the Labour Relations Department, of which the first respondent was
the Head
.
[10] On the other hand, and accor ding to the respondents, the document relied on
to establish the authority of the first respondent is a proper written sub-
delegation issued by the Acting City Manager in terms of the powers vested in
him by the CSD , which authorises the Divisional Head: Labour Relations (the
first respondent) to institute disciplinary proceedings. The respondents
contend that it must be considered that this sub delegation specifically relates
to human capital / employment matters, and it would thus have to include
disciplinary proceedings as a ‘similar process’. The respondents argue that
this document expressly empowers the first respondent to sign documents
emanating from legal matters within Labour Relations' mandate, which
includes discipline. And finally, it is said that this is not a Legal D epartment
issue, as the sub delegation specifically refers to the fact that this power is
exercised in ‘consultation’ with the Legal Department.
exercised in ‘consultation’ with the Legal Department.
[11] The actual disciplinary proceedings against the applicants are conducted in
terms of clause 7 of the Disciplinary Procedure Collective Agreement adopted
in the South African Local Government Council (the Disciplinary Procedure). It
is a collective agreement binding on all parties. The purpose of the Disciplinary
Procedure is to give effect to the right to procedural fairness in disciplinary
proceedings against employees in local government, in terms of the Labour
6
Relations Act (LRA) 4. Clause 7.1 provides that an allegation of misconduct
against an employee shall be brought before the Municipal Manager or his
authorised representative for consideration and decision. In terms of c lause
7.3, where the Municipal Manager or his/her authorised representative is
satisfied that there is prima facie cause to believe that an act of misconduct has
been committed, he may institute disciplinary proceedings against the
employee concerned.
[12] There is no dispute between the parties of any contravention of the
Disciplinary Procedure other that the issue of the authority to institute the
proceedings, limited only to the issue of the first respondent allegedly not
being the authorised representative of the Municipal Manager as contemplated
by the Disciplinary Procedure. It is equally common cause that the applicants
have been participating in the disciplinary proceedings from its institution, and
never raised any objection concerning the institution of the same, until the
applicants’ counsel came up with this point much later.
[13] When the applicants ’ counsel then raised the point in limine before the
chairperson on 11 November 2025, it was refused. That then led to the
institution of the current urgent application, which was only brought on 8
December 2025. As said, t he application was opposed by the respondents,
who raised a number of points in limine . However, and considering the
conclusion I have come to in this judgment, it is not necessary to decide on
any of these points.
[14] I will now turn to deciding this matter, by first dealing with the issue of urgency.
Urgency
[15] Urgent applications are governed by Rule 38 of the Labour Court Rules, being
the successor to the erstwhile Rule 8. The Court in Jiba v Minister:
Department of Justice and Constitutional Development and Others
5 applied
Rule 8 as follows:
4 Act 66 of 1995 (as amended).
5 (2010) 31 ILJ 112 (LC) at para 18.
7
‘Rule 8 of the rules of this court requires a party seeking urgent relief to set out
the reasons for urgency, and why urgent relief is necessary. It is trite law that
there are degrees of urgency, and the degree to which the ordinarily
applicable rules should be relaxed is dependent on the degree of urgency. It is
equally trite that an applicant is not entitled to rely on urgency that is self
created when seeking a deviation from the rules.’
These same considerations, in my view, equally apply to Rule 38.
[16] When considering whether urgency has been established, an important
consideration, which is particular application in casu, would be whether an
applicant would not be afforded substantial redress in due course, and the
applicant must provide proper reasons in support of a case that this would not
be possible.
6 As succinctly described by the Court in Maqubela v SA
Graduates Development Association and Others7:
‘Whether a matter is urgent involves two considerations. The first is whether
the reasons that make the matter urgent have been set out and secondly
whether the applicant seeking relief will not obtain substantial relief at a later
stage. In all instances where urgency is alleged, the applicant must satisfy the
court that indeed the application is urgent. Thus, it is required of the applicant
adequately to set out in his or her founding affidavit the reasons for urgency,
and to give cogent reasons why urgent relief is necessary. … ’
[17] Where an applicant seeks final relief, the Court must be even more
circumspect when deciding whether or not urgency has been established. 8 In
Tshwaedi v Greater Louis Trichardt Transitional Council9 the Court said:
‘… An applicant who comes to court on an urgent basis for final relief bears an
even greater burden to establish his right to urgent relief than an applicant
who comes to court for interim relief. …. ’
[18] The Court must also consider the interests of the respondent party, and in
[18] The Court must also consider the interests of the respondent party, and in
particular, the prejudice the respondent may suffer if the matter is urgently
6 Mojaki v Ngaka Modiri Molema District Municipality and Others (2015) 36 ILJ 1331 (LC) at para 17;
East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others [2012] JOL
28244 (GSJ) at para 6.
7 (2014) 35 ILJ 2479 (LC) at para 32. See also Transport and Allied Workers Union of SA v Algoa Bus
Co (Pty) Ltd and Others (2015) 36 ILJ 2148 (LC) at para 11.
8 [2002] JOL 9452 (LC) at para 8.
9 [2000] 4 BLLR 469 (LC) at para 11.
8
disposed of. In Association of Mineworkers and Construction Union and
Others v Northam Platinum Ltd and Another10 the Court held as follows:
‘But it is not just about the applicant. Another consideration is possible
prejudice the respondent might suffer as a result of the abridgement of the
prescribed time periods and an early hearing.’
[19] Finally, urgency must not be self-created by an applicant, as a consequence of
the applicant having not brought the application at the first available
opportunity.11 As the Court said in Northam Platinum supra12:
‘… the more immediate the reaction by the litigant to remedy the situation by
way of instituting litigation, the better it is for establishing urgency. But the
longer it takes from the date of the event giving rise to the proceedings, the
more urgency is diminished. In short, the applicant must come to Court
immediately, or risk failing on urgency. …
’
[20] When the above considerations with regard to urgency are then applied to the
applicants’ application in casu, I am compelled to conclude that there simply
exists no basis on which to urgently intervene in this matter. As a point of
departure, the applicants have actually made out no case of urgency at all, an
issue properly pointed out and pertinently by the respondents in the answering
affidavit.
[21] On the applicants’ own version, the disciplinary proceedings started as far
back as April 2025, without objection. By the time the proceedings reconvened
in November 2025, the first respondent had already led the evidence of its first
witness, and the applicants were in the process of cross -examining that
witness. Only then , also on the applicants ’ own version, did they allegedly
come to realise the authority point. There is no indication or explanation why
this point could not have been realised or appreciated earlier. Surely it would
be the easiest thing in the world for the applicants to have enquired about the
be the easiest thing in the world for the applicants to have enquired about the
10 (2016) 37 ILJ 2840 (LC) at para 26. See also IL & B Marcow Caterers (Pty) Ltd v Greatermans SA
Ltd and Another 1981(4) SA 108 (C) at 113D-114C.
11 See Golding v HCI Managerial Services (Pty) Ltd and others [2015] 1 BLLR 91 (LC) at para 24;
National Union of Mineworkers v Lonmin Platinum Comprising Eastern Platinum Ltd and Western
Platinum Ltd and Another (2014) 35 ILJ 486 (LC) at para 50.
12 Id at para 26. See also Sihlali and Others v City of Tshwane Metropolitan Municipality and Another
(2017) 38 ILJ 1692 (LC) at para 18.
9
issue of authority when the proceedings started, and with minimal effort could
have secured the OSD, which is a matter of public record. This is, as the
respondents correctly say, ‘ quintessential eleventh- hour litigation’, and a
prime example of self created urgency.
[22] The applicants' only attempt to justify the delay is that the applicants allegedly
only came across the authority point, shortly before the disciplinary hearing on
11 November 2025, when the applicants ’ counsel came across the OSD in
another unrelated matter. As a matter of principle, this is not an acceptable
explanation. As I have said, and with minimal effort, the OSD could have been
obtained from the outset. If the applicants truly believed authority was an
issue, they needed to raise i t at the start of this case. It is an untenable
position to participate in the disciplinary proceedings for more than six months,
and then only purportedly realise this issue and raise it. These kinds of points
must be raised at the outset. Anything else is self created.
[23] The applicants’ explanation also does not account for several pertinent facts.
As the respondents correctly point out , the applicants’ counsel requested the
OSD as far back as on 25 August 2025, and it was discovered and shared
with all parties on 26 September 2025. This meant that the applicants waited
from 26 September 2025 until 8 December 2025 to launch these proceedings.
Other than deciding to raise this as a point in limine in the disciplinary hearing
on 11 November 2025, this entire delay is unexplained. In particular , there is
no explanation why it took almost a month following the chairperson’s ruling on
11 November 2025, until the application was brought on 8 December 2025.
[24] I am convinced that this application was brought with the idea to scupper the
disciplinary hearing set to proceed on 27 to 29 January 2026. The urgency in
this matter is nothing short of self created, for ulterior purposes.
this matter is nothing short of self created, for ulterior purposes.
[25] The applicants, considering they elected to participate in the disciplinary
proceedings, will be able to obtain substantial redress in the ordinary course.
The issue of a lack of authority can be raised as a ground of unfairness in any
unfair dismissal proceedings in the Bargaining Council, which is actually the
proper manner in which to resolve employment issues. A finding in their favour
in this respect could lead to a finding of unfair dismissal which in turn could
10
lead to fully retrospective reinstatement. There is simply no need to approach
this Court on an urgent basis.
[26] It is clear to me, when considering the founding affidavit, that the applicants
approach this Court effectively on the basis of a purported entitlement. It
appears that the approach adopted by the applicants is that because they rely
on the contended unlawfulness of the disciplinary proceedings based on an
alleged lack of authority to institute the same, it effectively affords them the
right to urgent relief. Such an approach is patently wrong. No matter what the
underlying cause of action may be, where an urgent application is brought, the
prescribed considerations of urgency must always be satisfied. If not, this
Court could be turned into a free for all by any litigant who believes it has been
unlawfully treated. In Northam Platinum supra
13 the Court had the following to
say:
‘Whilst it may be so that a dismissal could in particular circumstances, and
where the LRA is not relied upon, be considered to be unlawful and
consequently invalid because of a specific provision in a contract of
employment which has been breached, this cannot per se serve to jump the
queue of all other dismissed employees relying on the provisions of the LRA
waiting for their turn in court. This kind of situation is merely another cause of
action upon which the termination of a contract of employment can be
challenged in the Labour Court. But other than that it holds no particular
magic.’
[27] In summary i n casu , the dispute is based on the notion that the first
respondent was not authorised to institute disciplinary proceedings against the
applicants. But what is quite bizarre is that the applicants were charged as far
back as February 2025 with the proceedings commencing in April 2025, and
have been participating in the proceedings, without protest, since. Yet t hey
wait to raise the point of the proceedings being unlawful, in the disciplinary
wait to raise the point of the proceedings being unlawful, in the disciplinary
hearing continuing on 11 November 2025 as a part heard matter , and after
that, they waited almost a further month util 8 December 2025 to bring this
application, saying it must be heard urgently simply because the proceedings
are unlawful, null and void. I n my view, the same sentiments expressed in
13 Id para 6. See also National Education Health and Allied Workers Union and others v University of
South Africa and Another (2022) 43 ILJ 2351 (LC) at para 8; Maphalle (supra) at paras 2 – 3.
11
Northam Platinum supra would equally apply. There is no reason why the
applicants’ dispute should be determined other than in the ordinary course, if it
is even competent to be considered by this Court.
[28] The situation is made worse by the applicants failing to bring this application at
the earliest available opportunity. The applicant s, on their own version, should
have been aware of the possible existence of the authority issue as far back
as 25 August 2025. Yet the application was only brought on 8 December
2025, in excess of three months later. There is no explanation why it took this
period of time to bring an application which was so urgent that it had to be
heard immediately. This delay is simply undue, and excessive, and required a
proper explanation to justify it. None exists, which leaves an unexplained
excessive delay, which must be destructive of urgency.
[29] As part of any case of urgency, the interests of the respondent s must also be
considered. They have been dragged to Court on an urgent basis to defend
disciplinary proceedings that have been instituted, as said, as far back as April
2025 and has been running unhindered ever since . It is highly pr ejudicial for
the respondents to have to finally abort such proceedings , at this late stage,
pursuant to urgent proceedings . What makes this worse is that the applicants
are effectively seeking final relief in the form of permanently interdicting any
disciplinary proceedings against them, considering how the notice of motion is
couched. I believe this kind of relief the applicants seek, on a final basis, would
be an undue interference with the respondents’ rights to conduct internal
discipline free from unjustified hindrance.
[30] Therefore, the applicants have dismally failed to make out a case of urgency.
The requirements of Rule 38 have thus not been satisfied. In sum, there is at
best a delay of more than three months which is completely unexplained. This
best a delay of more than three months which is completely unexplained. This
is clearly a matter of self-created urgency. There is a complete absence of any
exceptional circumstances justifying urgent intervention, and no such case has
even been made out by the applicant s. The applicants are able to obtain
substantial redress in the ordinary course. For these reasons, the application
falls to be struck from the roll, or be dismissed.
14 The Court in February v
14 See Radebe and Others v Aurum Institute (2024) 45 ILJ 876 (LC) at paras 26 – 28.
12
Envirochem CC and Another15 accepted that urgency was not established, but
the Court nonetheless proceeded to dismiss the matter. For the reasons to
follow, I believe that this is a similar situation where the matter must be finally
disposed of and dismissed, and not just struck from the roll.
Jurisdiction
[31] Jurisdiction is determined on the basis of the case as pleaded by the
applicants, which pleaded case in motion proceedings is determined by
reference to the notice of motion and founding affidavit. 16 The only case
pleaded by the applicants is reflected as follows in the founding affidavit:
‘The above Honourable Court has jurisdiction to hear this matter as the dispute
and the cause of action arose within the jurisdiction of the above Honourable
Court. The application is brought in terms of section 157 (2) of the Labour
Relations Act 66 of 1995.’
[32] Added to the above, the applicants seek final in the form of permanently
scuppering the disciplinary hearing, as is evident from the founding affidavit as
well, where the applicants say: ‘The purpose of this application is to seek an
order on the urgent basis ordering the Third Respondent not to continue with
the disciplinary hearing scheduled for 27 - 28 January 2026 and further, that
the First Respondent does not have any powers to bring disciplinary charges
against the members of the Tshwane Metropolitan Police and that such
powers and authority vests with the Second Respondent. Further, to order that
the disciplinary charges brought against the applicants are unlawful, null and
void ab initio…’ (sic). And lastly, where it comes to the existence of
exceptional circumstances as justification for this urgent intervention the
applicants seek, only one averment is put forward, being that: ‘ … the
15 (2013) 34 ILJ 135 (LC) at para 17. See also National Union of Metalworkers of SA and Others v
Bumatech Calcium Aluminates (2016) 37 ILJ 2862 (LC) at para 33; Bethape v Public Servants
Bumatech Calcium Aluminates (2016) 37 ILJ 2862 (LC) at para 33; Bethape v Public Servants
Association and Others [2016] ZALCJHB 573 (9 September 2016) at para 53; Rail Refurb CC v South
African National Road Agency 2023 JDR 3545 (GP) at para 22; National Association of SA Workers
on Behalf of Members v Kings Hire CC (2020) 41 ILJ 685 (LC) at para 32.
16 See Gcaba v Minister for Safety and Security and Others (2010) 31 ILJ 296 (CC) at para 75; Mbatha
v University of Zululand (2014) 35 ILJ 349 (CC) at para 157; Ekurhuleni Metropolitan Municipality v SA
Municipal Workers Union on behalf of Members (2015) 36 ILJ 624 (LAC) at para 21; Moodley v
Department of National Treasury and Others (2017) 38 ILJ 1098 (LAC) at para 37; Mohlomi v
Ventersdorp/Tlokwe Municipality and Another (2018) 39 ILJ 1096 (LC) at para 42; Public Servants
Association on behalf of Members v Minister of Health and Others (2019) 40 ILJ 193 (LC) at para 15.
13
exceptional circumstances required in this regard are the fact that the First
Respondent has acted beyond the statutory powers conferred upon him and
consequently, his conduct is ultra vires in terms of the applicable legislation
and the Constitution’
.
[33] The aforesaid being the case as pleaded, the first issue for consideration is
whether this Court has jurisdiction to entertain the applicants ’ application and
grant them the relief sought. In Du Plessis v Public Protector and Others17 the
Court said:
‘Jurisdiction cannot be assumed or implied. It either exists or it does not.
Jurisdiction is the power of the Court to decide a matter that has been brought
before it. If the Court does not have the power to do so, it cannot consider the
matter, no matter what the merits or equities may be … ’
[34] In Gcaba v Minister for Safety and Security and Others 18, the Court described
the concept of ‘jurisdiction’ as follows: ‘… The specific term 'jurisdiction', which
has resulted in some controversy, has been defined as the 'power or
competence of a court to hear and determine an issue between parties … ’.
And in Makhanya v University of Zululand 19, the Court also dealt with the
meaning of jurisdiction as follows: ‘…. Judicial power is the power both to
uphold and to dismiss a claim. It is sometimes overlooked that the dismissal of
a claim is as much an exercise of judicial power as is the upholding of a claim.
A court that has no power to consider a claim has no power to do either (other
than to dismiss the claim for want of jurisdiction).’
[35] The jurisdiction of the Labour Court is defined in section 157 of the LRA, which
reads:
‘
(1) Subject to the Constitution and section 173, and except where this
Act provides otherwise, the Labour Court has exclusive jurisdiction in respect
of all matters that elsewhere in terms of this Act or in terms of any other law
are to be determined by the Labour Court.
are to be determined by the Labour Court.
17 (2020) 41 ILJ 919 (LC) at para 20. See also Makhanya v University of Zululand (2009) 30 ILJ 1539
(SCA) at para 23; SA Maritime Safety Authority v McKenzie (2010) 31 ILJ 529 (SCA) at para 8.
18 (2010) 31 ILJ 296 (CC) at para 74.
19 (2009) 30 ILJ 1539 (SCA) at para 23.
14
(2) The Labour Court has concurrent jurisdiction with the High Court in respect
of any alleged or threatened violation of any fundamental right entrenched in
Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising
from-
(a) employment and from labour relations;
(b) any dispute over the constitutionality of any executive or administrative
act or conduct, or any threatened executive or administrative act or conduct,
by the State in its capacity as an employer; and
(c) the application of any law for the administration of which the Minister is
responsible.’
[36] Therefore, the jurisdiction of the Labour Court is specifically circumscribed and
determined by statute, being the LRA itself. It is critical to appreciate that
section 157(1) does not establish a general jurisdiction that the Labour Court
can exercise, in all instances where a litigating party approaches the Labour
Court and pleads the dispute is one related to an employment matter. 20 In
order for the Labour Court to have jurisdiction, the issue for determination
must be specifically provided for in the LRA, or in any other related
employment law, such as for example the E mployment Equity Act (EEA)
21 or
Basic Conditions of Employment Act (BCEA) 22. The applicant must also
indicate on what provision in any of these items of legislation the applicant
relies.23
[37] It is true that in Booysen v Minister of Safety and Security and others24 , the
Court propagated a general approach t hat the Labour Court would have
general jurisdiction to intervene to restrain any alleged illegalities, irregularities
or unfairness in incomplete workplace proceedings, provided that exceptional
circumstances exist that would justify such intervention. The Court in that case
had said:25
20 In Baloyi v Public Protector and Others (2021) 42 ILJ 961 (CC) at para 24, it was held: ‘… Crucially,
s 157(1) does not afford the Labour Court general jurisdiction in employment matters … ’ See also
Soobedar and Another v Minister of International Relations and Cooperation and Another (2021) 42
ILJ 1761 (LC) at para 12.
21 Act 55 of 1998 (as amended).
22 Act 75 of 1997 (as amended).
23 In SA Medical Association Trade Union on Behalf of Rikhotso v Member of the Executive Council,
Department of Health, Limpopo Province and Others (2023) 44 ILJ 1779 (LC) at para 6, the Court
said: ‘… an applicant must necessarily identify the statutory provision that confers jurisdiction on the
court … ’. See also Shezi v SA Police Service and Others (2021) 42 ILJ 184 (LC) at para 10.
24 (2011) 32 ILJ 112 (LAC).
25 Id at para 54.
15
‘To answer the question that was before the court a quo, the Labour Court has
jurisdiction to interdict any unfair conduct including disciplinary action.
However such an intervention should be exercised in exceptional cases … ’
[38] However, this approach was recently revisited by the LAC in Cibane and
Another v Premier of Province of Kwazulu- Natal26. Relying on how the
Constitutional Court dealt with the notion of the Labour Court having
jurisdiction to adjudicate and decide unlawful dismissals in Steenkamp and
Others v Edcon Ltd (National Union of Metalworkers of SA intervening) 27,
being that the Labour Court in fact had no jurisdiction to determine the
lawfulness of a dismissal, the Court in Cibane decided:28
‘It is clear from this passage that outside of the scope of any statutory
provision that specifically confers jurisdiction on the Court, the Labour Court
has no jurisdiction, in any general sense, to make any determination of the
unlawfulness of employer conduct.’
The Court in Cibane then specifically came to the following two important
conclusions:29
‘In the absence of any statutory provision conferring jurisdiction on the Labour
Court both in respect of employer conduct alleged to be unlawful and in
employment-related matters generally, there can thus be no general rule, as
the judgment in Booysen might be construed, to the effect that the Labour
Court has jurisdiction to intervene in medias res to restrain any alleged
illegalities, irregularities or unfairness in incomplete disciplinary proceedings.’
And:30
‘In summary: to the extent that Booysen has been interpreted to establish a
general rule, qualified only by exceptionality, that the Labour Court has
jurisdiction to intervene in uncompleted disciplinary proceedings, this is not an
interpretation that can be sustained by section 157(1) of the LRA.’
[39] In my view, Cibane has now clarified the issue of jurisdiction of the Labour
Court under section 157(1). The Labour Court does not have any general
Court under section 157(1). The Labour Court does not have any general
26 [2025] 10 BLLR 1004 (LAC).
27 (2016) 37 ILJ 564 (CC) at para 106.
28 Id at para 24.
29 Id at para 27.
30 Id at para 32.
16
jurisdiction in intervene and / or adjudicate any alleged unfairness,
unlawfulness, illegalities or irregu larities pertaining to any conduct or failure of
any party to the employment relationship. What the applicant in any litigation
proceedings, where intervention from the Labour Court is sought , must do, is
to substantiate the jurisdiction of the Labour Court by specifically matching the
cause of action or issue in dispute, to a specific provision as contained in the
LRA itself that affords the Labour Court jurisdiction to intervene. If that cannot
be done, then there is no jurisdiction. And in this context, an applicant must
specifically plead on what section of the LRA such an applicant relies on to
establish jurisdiction. The applicants have not done this at all in this instance.
The applicants squarely rely only on unlawfulness in respect of the conduct of
the first respondent in convening the disciplinary hearing against the
applicants, without any reference to any provision under the LRA . This
deprives this Court of jurisdiction.
[40] The applicants at least specifically plead reliance on section 157(2)(a) of the
LRA, which , considering the section as quoted above, relates to issues
concerning an alleged violation of any fundamental right entrenched in
Chapter 2 of the Constitution, provided that alleged violation arises from
employment and labour relations. In my view, s ection 157(2)(a) is intended to
cover those instances where, ordinary, the High Court would have jurisdiction
to decide the dispute, however this cover, for the want of a better description,
is specifically limited to narrowly defined and prescribed instances. In short,
the High Court is not deprived of jurisdiction, and the Labour Court would
simply have the same jurisdiction the High Court would have when considering
and deciding the matter, but only if the matter can be shown to resort within
the defined confines of section 157(2)(a).
the defined confines of section 157(2)(a).
[41] In order to succeed with any reliance on section 157(2)(a) to confer jurisdiction
on the Labour Court, two things must be shown to exist. First, there must be a
violation of a fundamental right as contemplated by Chapter 2 of the
Constitution. And secondly, this violation must arise from ‘ employment and
from labour relations ’. These words must be conjunctively applied. And what
17
may be considered to be ‘employment and labour relations ’ must be narrowly
construed. As pertinently held in Gcaba supra31:
‘Furthermore, the LRA does not intend to destroy causes of action or remedies
and s 157 should not be interpreted to do so. Where a remedy lies in the High
Court, s 157(2) cannot be read to mean that it no longer lies there and should
not be read to mean as much. Where the judgment of Ngcobo J
in Chirwa speaks of a court for labour and employment disputes, it refers to
labour- and employment-related disputes for which the LRA creates specific
remedies.’ (emphasis added)
The Court in Gcaba was referring to the following dictum in Chirwa v
Transnet32:
‘While s 157(2) remains on the statute book, it must be construed in the light
of the primary objectives of the LRA. The first is to establish a comprehensive
framework of law governing the labour and employment relations between
employers and employees in all sectors. The other is the objective to establish
the Labour Court and the Labour Appeal Court as superior courts,
with exclusive jurisdiction to decide matters arising from the LRA. In my view
the only way to reconcile the provisions of s 157(2) and harmonize them with
those of s 157(1) and the primary objects of the LRA is to give s 157(2) a
narrow meaning. …
’
[42] Further, it is incumbent on any applicant to specifically identify what
fundamental right is being violated, and then make out a case that that
violation arises from employment and from labour relations. As made clear in
Besani v Maquassi Hills Local Municipality
33:
31 Id at para 73.
32 (2008) 29 ILJ 73 (CC) at para 123. See also SA Municipal Workers Union and Others v Mokgatla
and Others (2016) 37 ILJ 1317 (SCA) at para 14, where it was held: ‘In Macun, this court lamented the
persistent attempts by practitioners to fashion cases to suit their clients' choice of forum. Navsa JA
emphasised that s 157(2) must be narrowly construed in the light of the primary objectives of the LRA
to establish a comprehensive framework regulating labour relations ’. The Court in Mokgatla was
referring to Motor Industry Staff Association v Macun NO and Others (2016) 37 ILJ 625 (SCA) at para
18.
33 (2016) 37 ILJ 1386 (LC) at paras 33 and 37. See also Malinga and Others v KwaZulu- Natal
Provincial Department of Education and Others (2020) 41 ILJ 228 (LC) at para 8; Tshepo v South
African Police Service and Others (J 656/21) [2021] ZALCJHB 155 (25 June 2021) at para 26.
18
‘The first enquiry relates to whether an allegation is made that a fundamental
right has been infringed or whether a threat to violate such a right has been
made. …
The applicant has to tell this court what fundamental right as entrenched in
chapter 2 of the Constitution has been violated or is being threatened. In casu
no allegations are made that a fundamental right had been infringed and, in
the absence of such averments, this case does not fall within the ambit of s
157(2) of the LRA.’
[43] The applicant’s founding affidavit contains no exposition of what fundamental
right has been violated. In fact, the applicants do not refer to any fundamental
right at all. All the applicants say is that the disciplinary hearing was unlawful,
because of a lack of authority. There is no pleaded reliance on any
fundamental right that has been violated in this respect. The following dictum
in Public Servants Association on behalf of Members v Minister of Health and
Others34 appositely illustrates the kind of difficulties the applicant s have in
casu:
‘To the extent that the applicant relies on s 157(2) of the LRA and submits that
its complaint implicates a chapter 2 right in the Constitution (in the form of a
right to an environment that is not harmful to the health or the well -being of its
members), this is not a claim foreshadowed by the founding affidavit. The
founding affidavit states no more than that the applicant’s members have a
clear right to work in an environment that is not harmful to their health and
well-being, and that compelling them to continue working in an environment
that is harmful to their health and well -being is a violation of that right. The
applicant does not identify the fundamental right on which it relies with any
greater specificity; it is not clear, for example, whether the right relied on is
that established by s 24 (environment), or s 23 (labour relations), or both. This
is not something I need attempt to discern from the founding affidavit — the
is not something I need attempt to discern from the founding affidavit — the
authorities are clear. …
’
[44] Insofar as the applicants may rely on a general and inherent jurisdiction of the
Labour Court under section 157(2)(a) per se, this equally cannot be correct.
As I have said, the Labour Court only has jurisdiction in respect of matters
34 (2019) 40 ILJ 193 (LC) at para 23.
19
specifically allocated to it by statute to decide. The same has been said
specifically in the context of section 157(2)(a) as well. In Mphahlele v Ephraim
Mogale Municipality
35 the Court held as follows:
‘In other words, s 157(2) does not confer a general jurisdiction on this court to
entertain a claim simply because a party asserts that the claim is one that
concerns a violation of a fundamental right. Further, where there is legislation
that gives expression to fundamental rights, any claim must be brought in
terms of that legislation; an applicant is not entitled to seek the direct
enforcement of the fundamental right concerned. In any event, and to the
extent that the applicant’s counsel relies on the enforcement of a fundamental
right to found jurisdiction, the statement of claim makes no reference to the
Constitution let alone any particular fundamental right.’
[45] Consequently, I am unconvinced that the Labour Court has jurisdiction to
entertain the applicants’ case and grant the applicants the relief that they seek.
The application must fail for this reason alone.
[46] Only for the sake of being complete, I in any event do not believe the
applicants’ lack of authority case has substance, and I am unconvinced that
the applicants have a clear right to the relief sought . There is proper evidence
of the delegation of the authority to discipline employees, to the first
respondent, who is directly responsible for labour relations in the third
respondent. The ascribe to the kind of reasoning propagated by the
applicants, namely that the sub delegated authority document relied on by the
first respondent must specifically incorporate a reference to disciplinary action,
makes little sense considering the broad delegation envisaged by the OSD to
ensure efficiency of operations , and flies in the face of the very point of
establishing delegated authority in the third respondent to responsible
Departments. It simply cannot be expected of the City Manager to have to
Departments. It simply cannot be expected of the City Manager to have to
institute disciplinary action against each and every individual employee in the
entire Municipality , and that is why there is a sub delegation to the Labour
Relations Department to deal with such issues. I believe this is clearly what is
envisaged by the sub delegation of 23 March 2022. But considering this Court
has no jurisdiction to afford the applicants the relief they seek, I need not
finally decide this issue.
35 (2018) 39 ILJ 879 (LC) at para 10. See also Besani (supra) at para 36.
20
[47] All said, the applicants’ application thus stands to be dismissed.
Costs
[48] This then only leaves the issue of costs. In this respect, and in terms of section
162(1), I have a wide discretion. The applicant s were legally assisted
throughout these proceedings, and thus should thus have known, from the
outset, that the current application, especially brought on the basis of urgency,
was doomed to fail. I also consider that the application, especially considering
the relief sought, was never going to be competent. The kind of approach
adopted by the applicant s should be frowned upon. The urgency in this case
was undoubtedly self created, an di am convinced that it was part of a
stratagem to scupper the disciplinary hearing. And finally, the continuous
failure by litigants to heed the numerous warnings by this Court where it
comes to these kinds of applications must be visited with adverse
consequence.
[49] I am mindful of the sentiments expressed by the Constitutional Court in In
Union for Police Security and Corrections Organisation v SA Custodial
Management (Pty) Ltd and Others 36 concerning costs orders in employment
disputes. However, this is not a blanket immunization against costs orders.
Costs may still be awarded by this Court, if the facts justify it, and if there are
proper substantive reasons for such orders. In this respect, I fully align myself
with the following dictum in Mokoena v Merafong Municipality and Others
37:
‘In casu, the applicant brought a meritless application to this court and fairness
dictates that the respondents cannot be expected to endure enormous costs
defending litigation where more thought and consideration had to be put in
before approaching this court on an urgent basis. … ’
[50] And in Leshabane v Minister of Human Settlements and Others38 it was said:
‘In bringing the application, the applicant took up the valuable time and already
stretched resources of this court. In doing so, the applicant compelled the
stretched resources of this court. In doing so, the applicant compelled the
respondents, which is a public institution funded out of the taxpayers virtually
36 (2021) 42 ILJ 2371 (CC) at para 35. See also Zungu v Premier of the Province of Kwa- Zulu Natal
and Others (2018) 39 ILJ 523 (CC) at para 25.
37 (2020) 41 ILJ 234 (LC) at para 36.
38 (2024) 45 ILJ 833 (LC) at para 58.
21
empty pocket, to defend the case using these already limited and stretched
public funds, which is not acceptable. What in reality happened in this instance
as abuse of process. This court has consistently said that this kind of
unfounded litigation is deserving of costs orders. The applicant must be told, in
no uncertain terms, hopefully also serving as an example to others, that
exercising his right of access to the courts must be done in a responsible
manner and always in compliance with the rules and processes of the court
.’
[51] All said, I believe this is a situation where a costs order against the applicant s
is certainly earned, and justified. Ordinarily, it would have been my view that a
a party and party costs order, either on scale B or C would be justified. The
respondents however graciously submitted that a costs order on the b asis of
party and party in scale A was appropriate. I am happy to oblige, which I
believe is more than fair. I make a costs order accordingly.
[52] It is for all the reasons as set out above that I made the order that I did as
respect in paragraph 3 of this judgment, supra.
_____________________
S Snyman
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Advocate A Mohlala
Instructed by: AMN Attorneys Inc
For the Respondents: Advocate D Thumbati
Instructed by: Lekhu Pilson Attorneys